The IME no-show defense, and how it differs from the EUO you already know.

The IME no-show defense is a no-fault carrier’s claim that it owes nothing because the injured person skipped medical examinations it demanded. It runs on the same condition-precedent theory as the EUO no-show defense, but on a different clock. An examination requested as additional verification must be scheduled to be held within 30 calendar days of the verification forms.

What is the IME no-show defense in a New York no-fault case?

The IME no-show defense is a no-fault insurer’s position that coverage is gone because the eligible injured person failed to appear for medical examinations the insurer scheduled. The prescribed personal injury protection endorsement requires that person to submit to medical examination by physicians selected by, or acceptable to, the company, when and as often as the company may reasonably require.

That sentence sits in the “Conditions” portion of the endorsement, next to the one that does the damage: no action lies against the company unless, as a condition precedent, there has been full compliance with the terms of the coverage.

Law: 11 NYCRR 65-1.1(d).

Put the two clauses together and the argument writes itself. Attendance is a term of the coverage. Nonattendance breaches it. A breached condition precedent is not the same thing as a bill paid late.

The Second Department has called noncompliance with a policy provision requiring submission to an examination under oath a material breach that precludes recovery of the policy proceeds, and courts apply that analysis to medical examinations. Appearance is required whether the insurer demanded the examination before the claim form was submitted or after.

Cases: Interboro Ins. Co. v. Clennon, 113 AD3d 596 (2d Dept 2014) (examination under oath); Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept 2006).

That distinction controls the rest of the analysis. An examination demanded after receipt of the prescribed verification forms is additional verification, and the verification time frames govern it. A demand made before any claim form arrives rests on the policy condition alone.

How is the IME no-show defense different from the EUO no-show defense?

The IME no-show defense and the EUO no-show defense share a doctrine and split on mechanics. Both are built on the endorsement’s conditions. But the medical examination carries an express regulatory deadline for the examination date itself, the examination happens in front of a physician the carrier selected or accepted, and it must occur in a properly equipped facility.

Law: 11 NYCRR 65-3.5(b), (d), (e); the 120-day verification provision of 11 NYCRR 65-3.5, which by its terms excludes both examination types.

The consequence is narrow. On the EUO track, the fight is whether the demand was timely and the witness produced. On the IME track there can be a second date, and it is the examination itself.

How quickly must the carrier schedule the independent medical examination?

Where the additional verification an insurer requires is a medical examination, the insurer must schedule that examination to be held within 30 calendar days from the date it received the prescribed verification forms. That is a boundary on the examination date, not on the mailing date of the notice. Shorter claim-handling deadlines surround it.

• Within 10 business days of receiving the completed application for benefits, the insurer forwards the prescribed verification forms it requires.
• Within 15 business days of receiving those completed forms, the insurer requests any additional verification, including a medical examination.
• If that verification is a medical examination, it is scheduled to be held within 30 calendar days of receipt of those forms.
• If requested verification has not been supplied 30 calendar days after the original request, the insurer must follow up within the next 10 calendar days.
• Absent a toll from a timely verification request, the claim is paid or denied within 30 calendar days after proof of claim.

Law: 11 NYCRR 65-3.5(a), (b), (d); 11 NYCRR 65-3.6(b); 11 NYCRR 65-3.8(a)(1); Insurance Law 5106(a).

Read the operative words slowly. The subdivision does not say the notice goes out within 30 days. It says the examination is scheduled to be held within 30 calendar days. A notice mailed on day 12 for an appointment on day 52 misses that boundary.

The regulation fixes the date of the examination, not the date of the letter. Carriers calendar the letter. That gap is where the defense lives.

Treat the miss as a hole in the carrier’s prima facie showing, not an automatic win. A scheduling defect and an excuse for nonappearance are different arguments.

I ask for the date the carrier received the claim form before I ask whether anyone went to the examination.

Why does the carrier have to prove two missed examinations and not one?

Two missed examinations are the practical standard because the courts have framed the defense that way and the follow-up regulation contemplates a second opportunity. When verification requested by the insurer has not been supplied 30 calendar days after the original request, the insurer must follow up within 10 calendar days. One absence is ordinarily not enough.

Law: 11 NYCRR 65-3.6(b).

The case law tracks that framing. The First Department has described the disclaimer as established where the insurer shows a provider claim form, a timely examination request measured from receipt of that claim, and a no-show at two duly noticed examinations. In the Appellate Term for the Second Department, the showing is two proper demands, two nonappearances, and a timely denial.

Cases: Unitrin Direct Ins. Co. v. Beckles, 188 AD3d 620 (1st Dept 2020); UGP Acupuncture, P.C. v. Metlife Auto & Home, 2022 NY Slip Op 50792(U) (App Term, 2d Dept 2022) (examination under oath).

So count the notices, then measure the follow-up from the right date. The 10-day duty is triggered only after 30 calendar days pass without the verification, so the window runs from day 30 to day 40 after the request. A second notice sent on day 25 is early, not late. The carrier with the problem never rescheduled at all.

What proof of mailing does the carrier actually need for the IME notices?

Proof of mailing for examination notices requires evidence in admissible form: an affidavit from someone with personal knowledge of the actual mailing, or from someone with personal knowledge of a standard office practice geared to ensure that items are properly addressed and mailed. An assertion that letters “were sent” does not carry that burden.

Cases: Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept 2006); Nationwide Affinity Ins. Co. of Am. v. George, 183 AD3d 755 (2d Dept 2020) (examination under oath notices, same mailing standard).

The mirror image matters to you. Opposing affidavits have been rejected where they did not directly contradict the insurer’s showing on its addressing and mailing practices, and a bare denial of receipt does not rebut the presumption. A wrong address, a wrong name, or a mailing date that cannot be squared with the log is a rebuttal.

Nonappearance needs proof too, from a person with knowledge of what happened at the examination site that day.

Then read the notice against the regulation. It must set the examination at a place and time reasonably convenient to the applicant, in a properly equipped facility, and must advise of reimbursement for loss of earnings and reasonable transportation expenses.

Law: 11 NYCRR 65-3.5(e).

Can the carrier deny every bill back to the date of the accident?

Retroactive denial to the date of loss is the First Department’s rule, and it is not the rule everywhere. That court held that where assignors failed to appear for requested medical examinations, the insurer could deny all claims retroactively to the date of loss regardless of whether the denials were timely, because breach of a condition precedent vitiates coverage.

Case: Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559 (1st Dept 2011), lv denied 17 NY3d 705 (2011).

It rests on the Court of Appeals distinction between a late denial, which is precluded, and a lack of coverage, which is not. That decision treated it as of no moment that the missed examinations were in a different specialty from the billed treatment. The defense applies to any claim received, not bill by bill.

Cases: Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195 (1997); PV Holding Corp. v. AB Quality Health Supply Corp., 189 AD3d 645 (1st Dept 2020).

Now the part carriers quote less often. The same court has denied insurers judgment where the record did not show that the examinations were requested and scheduled within the regulatory time frames, or did not let the court decide whether those time frames applied. Mailing plus nonappearance is not enough.

Cases: American Transit Ins. Co. v. Longevity Med. Supply, Inc., 131 AD3d 841 (1st Dept 2015); Kemper Independence Ins. Co. v. Adelaida Physical Therapy, P.C., 147 AD3d 437 (1st Dept 2017).

The retroactive denial is only as strong as the calendar behind it. Attack the calendar and the retroactivity has less to attach to.

Does the answer change depending on which department hears the case?

Department matters on one question: whether a nonappearance defense must be raised in a timely denial. The First Department treats nonappearance as a breach of a condition precedent that vitiates coverage, so an untimely denial does not defeat it. The Fourth Department, addressing an examination under oath, held that such a defense is subject to preclusion.

The Appellate Term has also separated examination nonappearance from a failure to produce written verification, which supports denial only of the claims requested.

Cases: Interboro Ins. Co. v. Clennon, 113 AD3d 596 (2d Dept 2014); Nationwide Affinity Ins. Co. of Am. v. Jamaica Wellness Med., P.C., 167 AD3d 192 (4th Dept 2018); Island Life Chiropractic Pain Care, PLLC v. 21st Century Ins. Co., 2021 NY Slip Op 21340 (App Term, 2d Dept 2021).

Forum is substantive here, not housekeeping. A declaratory judgment action in New York County and a collection case in Kings County can produce different outcomes on identical facts. Check where you are before deciding which argument leads.

What should you do first when a carrier says the patient missed the IME?

The first move is to build a dated timeline from the carrier’s own documents, because most of the elements of the IME no-show defense are dates. Before arguing that the examination was unreasonable or the report was wrong, test whether the carrier hit the deadlines the regulations impose on it. Concrete steps follow.

• Fix the trigger date. Identify when the carrier received the application for benefits and when it received the claim form at issue.
• Decide which clock runs. The verification time frames attach to a demand made after the claim forms arrived.
• Date the request. Compare the request for the medical examination against the 15 business day window.
• Date the examination. Compare the appointment date on the first notice against the 30 calendar day requirement.
• Date the follow-up. Measure it from the expiration of 30 calendar days after the original request.
• Demand the mailing proof. Ask for the affidavit, the addresses used, and the office practice it describes, then compare those addresses to your file.
• Read the notice content. Confirm the place, the time, the equipped facility, and the reimbursement advisement.
• Pull the denial. Find the date, the form, and the stated reason, and check whether the reason is nonappearance.
• Confirm the department and the forum, because the timely denial question turns on it.

I read the scheduling letters and the mailing affidavit before I read the denial, because the denial is written last and copies whatever the file already assumed.

One procedural caution. Deadlines in a declaratory judgment action run whether or not the carrier’s proof is any good, and a default turns a weak no-show record into a judgment you must move to vacate. Answer, preserve the objection, then make the carrier prove its calendar.